SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
Filed by the Registrant [ ]
Filed by a party other than the Registrant [X]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
MORTON'S RESTAURANT GROUP, INC.
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(Name of Registrant as Specified In Its Charter)
BFMA HOLDING CORPORATION
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(Name of Persons(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act
Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction
applies:
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(2) Aggregate number of securities to which transaction
applies:
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(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials:
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[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the form or
schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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EXPLANATORY NOTE
This document was previously filed on April 26, 2001. Please note that
the only changes to this document were made to (i) add the section captioned
"Recent Developments-Offer To Purchase Morton's For $28.25 Per Share In Cash",
(ii) update the section captioned "Background and Recent Events" and (iii)
supplement Schedule I with the information set forth under the section captioned
"Information Concerning Directors and Executive Officers of Icahn".
RECENT DEVELOPMENTS- OFFER TO PURCHASE MORTON'S FOR $28.25 PER
SHARE IN CASH
By letter dated May 1, 2001, BFMA made a fully-financed offer to
acquire all of the outstanding shares of common stock of Morton's for $28.25 per
Share in cash (the "Offer"). See "Background & Recent Events" for details of
communications between BFMA and Morton's leading up to the Offer. To finance the
Offer, BFMA has committed to provide no less than $20 million of equity and has
received a commitment from Icahn Associates Corp., an affiliated entity of Carl
C. Icahn, to provide $240 million in bridge financing in the form of $120
million of senior financing and at least $120 million of subordinated bridge
notes. These commitments provide for aggregate capital in excess of $260
million, more than enough to consummate the purchase of Morton's at $28.25 per
Share, refinance any debt as necessary and pay the fees and expenses of the
acquisition.
BFMA's Offer of $28.25 per Share represents a premium of approximately
36% over the weighted average closing price of Morton's common stock over the
last twenty (20) trading days prior to BFMA's delivery of the Offer.
BFMA is soliciting proxies because it believes that the election of the
BFMA Nominees represents the best means for the Stockholders to communicate to
Morton's directors (the "Directors") their desire to explore strategic
alternatives, including a possible sale of Morton's to BFMA or a third party, as
a way to maximize value for all of the Stockholders. If elected, the BFMA
Nominees have indicated that, subject to their fiduciary duties to the
Stockholders, they will seek to convince the other Directors to form a Special
Committee of Directors and hire independent financial and legal advisors to
arrange a prompt sale of Morton's to the highest bidder and on the most
favorable terms available to Morton's. Prior to consummating a transaction
between BFMA and Morton's, BFMA and Morton's will each be required to comply
with the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
If elected, the BFMA Nominees will constitute a minority of the current
nine (9) members of the Board. Under Morton's Amended and Restated Bylaws, a
majority of the whole Board constitutes a quorum, and action may be taken by a
vote of a majority of the directors when a quorum is present. Accordingly, the
BFMA Nominees would not be in a position, without the support of at least two or
more of the incumbent members of the Board, to effect any action, including a
sale of Morton's. There can be no assurance that the incumbent members of the
Board will vote with the BFMA Nominees to sell
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Morton's. BFMA believes, however, that Stockholder support for the BFMA Nominees
set forth in this proxy statement may encourage the Board to maximize
stockholder value through the sale of Morton's to the highest bidder.
This proxy statement is not an offer for the purchase of Shares. There
can be no assurance that, if the BFMA Nominees are elected, a sale of Morton's,
through the Offer or otherwise, will occur.
BACKGROUND AND RECENT EVENTS
BFMA has been following Morton's progress for the last few years and on
January 25, 2001 increased its holdings of Morton's common stock to over five
percent (5%). As one of Morton's largest stockholders, BFMA attempted to arrange
a meeting between its Chairman and President, Barry Florescue, and Morton's
Chairman and Chief Executive Officer, Allen Bernstein, to discuss Morton's and
the restaurant industry in general and to make some friendly and informal
suggestions regarding freeing up what BFMA perceived to be the trapped value in
the Shares. Mr. Bernstein refused to meet with BFMA. Ultimately, on March 15,
2001, Mr. Florescue met with the Chief Financial Officer of Morton's, Tom
Baldwin. Mr. Florescue shared BFMA's thoughts regarding Morton's and the
restaurant industry in general. He also expressed BFMA's concerns regarding the
lack of stockholder representation on the Board and BFMA's belief that the share
repurchases made by Morton's over the last two years, buying back over
thirty-eight percent (38%) of the then outstanding Shares, have served to reduce
the already limited liquidity in the Shares. Mr. Florescue informally requested
that Morton's consider expanding the Board to include stockholder
representatives. BFMA was informed that the Nominating Committee had already
made its selections for the Board seats and it was not prepared to expand the
number of the Board seats. BFMA then believed that the only way to obtain
Stockholder representation on the Board was to take its case directly to the
Stockholders. On March 20, 2001, BFMA sent a letter to Morton's nominating the
BFMA Nominees for election as Class 3 Directors at the Annual Meeting.
Morton's has stated in its definitive proxy statement that the Board is
committed to maximizing long-term value for all of the Stockholders and that it
is actively pursuing this goal. However, this commitment has not been reflected
in the Board's recent actions. The Board has recently provided Morton's
management with what BFMA believes to be very lucrative employment agreements
and change of control agreements that serve only to entrench Morton's
management. The Board has also provided Morton's management with generous
salaries, bonuses and stock option grants that serve to hurt the earning power
and long-term value of the Shares. BFMA believes that the election of the BFMA
Nominees will cause the Board to refocus on maximizing current Stockholder value
for ALL of the Stockholders.
On April 23, 2001, Allen Bernstein sent a letter to the Stockholders
attacking BFMA, the BFMA Nominees and Mr. Florescue. On May 1, 2001, BFMA made
the Offer, which is a fully- financed offer to acquire all of the outstanding
Shares it does not already own for $28.25 per Share in cash. On May 3, 2001,
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Barry Florescue filed a fight letter with the SEC in connection with the Offer
and the proxy contest relating to the election of the BFMA Nominees as Class 3
Directors at the Annual Meeting.
THE BFMA NOMINEES ARE COMMITTED, SUBJECT TO THEIR FIDUCIARY DUTIES TO
THE STOCKHOLDERS, TO GIVING ALL THE STOCKHOLDERS THE OPPORTUNITY TO RECEIVE THE
MAXIMUM VALUE FOR THEIR SHARES. A VOTE FOR THE BFMA NOMINEES WILL ENABLE YOU --
AS THE OWNERS OF MORTON'S -- TO SEND A STRONG MESSAGE TO THE BOARD THAT YOU ARE
COMMITTED TO MAXIMIZING THE VALUE OF YOUR SHARES.
SCHEDULE I
INFORMATION CONCERNING
DIRECTORS AND EXECUTIVE OFFICERS
OF ICAHN
To finance the Offer, BFMA has received a commitment from Icahn
Associates Corp., an affiliated entity of Carl C. Icahn, to provide $240 million
in bridge financing in the form of $120 million of senior financial and at least
$120 million of subordinated bridge notes. Icahn Associates Corp., (formerly
S.P. Arrow Corp.), a Delaware corporation ("Icahn"), is a diversified investment
firm and a wholly-owned subsidiary of Starfire Holding Corporation, a Delaware
corporation and a holding company wholly-owned by Mr. Icahn. The business
address of Icahn is 767 Fifth Avenue, 47th Floor, New York, New York 10153. Mr.
Icahn is the Chairman of the Board and a director of Icahn. Mr. Glass is the
President of Icahn. Mr. Icahn and Mr. Glass are each citizens of the United
States and neither has, during the past ten (10) years, been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors). By
virtue of its commitment, Icahn may be deemed to be a participant in this
solicitation.
Carl C. Icahn, age 65, has served as Chairman of the Board and a
Director of each of Starfire Holding Corporation (formerly Icahn Holding
Corporation), a privately-held holding company, and Icahn, and Chairman of the
Board and a Director of various other subsidiaries of Starfire, including ACF
Industries, Incorporated, a privately-held railcar leasing and manufacturing
company, since 1984. He has also been Chairman of the Board and President of
Icahn & Co., Inc., a registered broker-dealer and a member of the National
Association of Securities Dealers, since 1968. Since November 1990, Mr. Icahn
has been Chairman of the Board of American Property Investors, Inc., the general
partner of American Real Estate Partners, L.P., a public limited partnership
that invests in real estate. Mr. Icahn has been a Director of Cadus
Pharmaceutical Corporation, a firm which holds various biotechnology patents,
since 1993. Since August 1998 he has also served as Chairman of the Board of
Lowestfare.com, LLC, an Internet travel reservations company. From October 1998,
Mr. Icahn has been the President and a Director of Stratosphere Corporation
which operates the Stratosphere Hotel and Casino. Since September 29, 2000, Mr.
Icahn has served as the Chairman of the Board of GB Holdings, Inc., GB Property
Funding,
Inc. and Greate Bay Hotel & Casino, Inc. which owns and operates the Sands Hotel
in Atlantic City, NJ. All of the foregoing companies are affiliated with Mr.
Icahn. Mr. Icahn received his B.A. from Princeton University.
Russell D. Glass, age 38, since April 1998 has been President and Chief
Investment Officer of Icahn. Since August 1998 he has also served as
Vice-Chairman of Lowestfare.com, LLC, an Internet travel reservations company.
Since April 2000 Mr. Glass has also served as the Chief Executive Officer of
Cadus Pharmaceutical Corporation, a firm which holds various biotechnology
patents. Previously, Mr. Glass had been a partner in Relational Investors LLC,
from 1996 to 1998, and in Premier Partners Inc., from 1988 to 1996, firms
engaged in investment research and management. From 1984 to 1986 he served as an
investment banker with Kidder, Peabody & Co. Mr. Glass served as a Director of
Automated Travel Systems, Inc., a software development firm. He currently serves
as a Director of Axiom Biotechnologies, Inc., a pharmacology profiling company;
Cadus Pharmaceutical Corporation; Lowestfare.com, Inc.; National Energy Group,
Inc., an oil & gas exploration and production company; Next Generation
Technology Holdings, Inc.; and the A.G. Spanos Corporation, a national real
estate developer and owner of the NFL San Diego Chargers Football Club. Mr.
Glass earned a B.A. in economics from Princeton University and an M.B.A. from
the Stanford University Graduate School of Business.